9911796707
TMI Blog2009 (9) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... stan Oil Exploration Company (for short the target company). As a result of this acquisition, Bun-en made a public announcement to acquire further shares of the target company and its present holding therein is 27%. The acquisition by the second respondent was challenged by Hardy Oil Gas plc. (for short Hardy Oil), another company registered in London. Appeal No. 132 of 2005 filed by Hardy Oil was dismissed by this Tribunal on March 8, 2006. Thereafter, the appellant filed number of complaints with the Securities and Exchange Board of India (for short the Board) alleging that the acquisition by the second respondent violated Regulations 12, 22(7) and 23(3) of the Securities and Exchange Board of India (Substantial Acquisition of Shares an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the offer period whereas the Regulation 23(3) prohibits the target company from appointing any director on its Board as representing or having interest in the acquirer after making of public announcement . Since in the present case acquirers appointed their two directors on the Board of the target company before making of public announcement, Regulation 23(3) was not attracted. The learned Judges of the High Court who dealt with the Writ Petition took note of the order passed by the Board rejecting the plea of Hardy Oil regarding the violation of Regulation 12 and observed that that issue had since been negatived by the Board. The learned Judges of the High Court also took note of paragraph 13 of the affidavit of the Board and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal. The permission was granted and the following order was passed by the Hon'ble Supreme Court: The learned Counsel for the petitioner seeks permission to withdraw the special leave petition with a view to approach the appellate authority as stated by the High Court in the order impugned in the present special leave petition. It is clarified that if the petitioner approaches the appellate authority, the authority will decide the matter without being influenced by any observations made by the High Court. The special leave petition is dismissed as withdrawn accordingly. All contentions of the parties are kept open. After withdrawing his Special Leave Petition, the appellant filed the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the acquisition only on the ground that it violated Regulation 23(3) of the takeover code which plea was rejected by this Tribunal. Not having raised the plea of violation of Regulation 12 in the earlier appeal which plea was available to him then, he cannot raise that plea in the present appeal. The present appeal is, therefore, barred on the general principles of constructive res judicata and the principles underlying Order 2 Rule 2 of the Code of Civil Procedure. The plea which could be raised and ought to have been raised in the earlier appeal but not raised cannot be allowed to be raised in this appeal. In any case, in the light of the observations made by the High Court, the plea that the acquisition was violative of Regulation 12 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s explained hereafter, the present issue arises out of an illegal acquisition of control by Bun-en, a company that is incorporated in the United Kingdom, in an Indian Company HOEC (the Target Company). It is, thus, clear that what is sought to be challenged in the appeal is the inaction of the Board and not any order passed by it. The question whether inaction on the part of the Board can be challenged in appeal came up for our consideration in Appeal No. 140 of 2009 decided on August 28, 2009 and this is what we observed. 4. It is further clear that the first respondent has not taken any final decision on the matter and has passed no order which could said to be adversely affecting the rights of the appellant or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was entertained in view of the directions issued by the High Court observing that the plea made in paragraph 13 of the affidavit be taken as the decision of the Board for the purposes of the appeal. There is no such direction regarding violation of Regulation 12 of the Takeover Code. Therefore, we have no hesitation in holding that the present appeal is not maintainable. 4. In the result, the appeal fails and the same is dismissed. Since the appellant suppressed material facts from the Apex Court, he shall bear the costs of the respondents which are assessed at ₹ 50,000/- to be shared by them equally. The application filed by the appellant seeking to raise additional grounds in the appeal also stands dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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